7 Cush. 391.

(k) Wheeler v. Knaggs, 8 Ohio, 169, 372; Behaly v. Hatch, Walker (Miss.), 369; Breed v. Hurd, 6 Pick. 356.

• The tender must be unconditional; so, at least, it is sometimes said; but the reasonable, and we think the true rule is, that no condition must be annexed to the tender, (l) which the creditor can have any good reason whatever for objecting to; as, for instance, that he should give a receipt in full of all demands. (m) It may not perhaps be quite settled that if the

(l) In Bevana v. Rees, cited supra, n. (c), Maule, B., said: "No doubt a tender must be of a specific sum, on a specific account; and if it be upon a condition which the creditor has a right to object to, it is not a good tender. But if the only condition be one which he has no right to object to, and he has still power to take the money due, - as if the condition were, 'I will pay the money if you will take it up,' or the like, - that does not invalidate the tender. Here the defendant offers the plaintiff the option of taking any amount which he says is due, and only offers it in satisfaction of that amount; there is no condition therefore which the plaintiff has a right to object to."

(m) It has been often adjudged, that if the debtor demand a receipt in full this vitiates his tender. Glasscott v. Day, 5 Esp. 48, seems to be a leading case on this point. The sum claimed in the action was £20. The defendant pleaded non-assumpsit, except as to £18, and as to that a tender. The witness for the defendant, who proved the tender, stated, that he went to the plaintiff with the money, which he offered to pay on the plaintiff giving him a receipt in full. The plaintiff refused to receive it. And Lord Ellenborough held this not to be a good tender. Thayer v. Brackett, 12 Mass. 450, is also in point. The real debt was $190.25. Part of this debt had been paid by the note of a third person, which was indorsed by the debtor to the plaintiff. If this note had been paid at maturity, the defendant would still have been indebted to the plaintiff in the sum of $40, which he tendered, but required a receipt in full of all demands. The creditor refused to give this, as the note was still unpaid, but offered to give a receipt in full of all accounts; whereupon the tender was withdrawn. Parker, C. J., said: "The defendant lost the benefit of his tender by insisting on a receipt in full of all demands, which the plaintiff was not obliged to give him. The defendant should have relied on his tender and upon proof at the trial that no more was due. But he withdrew the tender, because the plaintiff would not comply with the terms which accompanied it. This cannot be deemed a lawful tender, and, according to the agreement of the parties, judgment most be entered for the plaintiff for the balance of his account and for his costs." And see Loring v. Cooke, 3 Pick. 48. Wood v. Hitchcock, 20 Wend. 47, is a strong case to this point It is there held, that a tender of money in payment of a debt to be available must be without qualification, i. e., there must not be anything raising the implication that the debtor intended to cut off or bar a claim for any amount beyond the sum tendered; and it was accordingly held in this case, that the tender of a sum of money in full discharge of all demands of the creditor was not good. And Cowen, J., said: "Very likely the defendant when he made the tender owed the plaintiff in the whole more than eighty-five dollars, but has succeeded, by raising technical difficulties, in reducing the report to that sum. Independent of that, however, the tender was defective. It was clearly a tender to be accepted as the whole balance due, which is holden bad by all the books. The tender was also bad, because the defendant would not allow that he was even liable to the full amount of what he tendered. His act was within the rule which says he shall not make a protest against his liability. He must also avoid all counterclaim, as of a setoff against part of the debt due. That this defendant intended to impose the terms, or raise the inference that the acceptance of the money should be in full, and thus conclude the plaintiff against litigating all further or other claim, the referees were certainly entitled to say. That the defendant intended to question his liabilitv to part of the amount tendered is equally obvious, and his object was at the same time to adjust his counter-claim. It is not of the nature of a tender to make conditions, terms, or qualifications, but simply to pay the sum tendered, as for an admitted debt. Interlarding any other object will always defeat the effect of the act as a tender. Even demanding a receipt, or an intimation that it is expected, as by asking, 'Have you got a receipt?' will vitiate. The demand of a receipt in full would of course be inadmissible.' The reason of this rule is obvious where the debtor does

* debtor demands a receipt for the sum which he pays, and if this be refused, retains the money, he will thereby (though always ready to pay it on those terms) lose the benefit of his tender. But the authorities seem to go in this direction. It has been recently held in New York, that a tender is valid although accompanied with a condition, if this be one which the debtor had a right to make and the creditor had no right to resist. (mm) 1 If, however, a tender be refused on some objection quite distinct from the manner in which it was made, as for the insufficiency of the sum or any similar ground, objections arising from the form of the tender are considered as waived, and cannot afterwards be insisted upon. (n) The tender may certainly be accompanied with words explanatory of the transaction, if they impose no condition. (nn)

The tender should be in money made lawful by the State in which it is offered. (o) But if it be offered in bank-bills which are current and good, and there is no objection to them at the time on the ground that they are not money, it will be considered so far an objection of form, that it cannot afterwards be advanced. (p)